4. Adopting Human Rights Based Processes
4.1 African Union Climate Change Policy
The African Union adopted a common view on climate change with the Declaration on Climate Change and Development in Africa in the eight ordinary session held in Addis Ababa, Ethiopia, in 2007. In this decision, the African Union acknowledged the vulnerability of Africa to climate change and instructed member states to integrate climate change in their respective development programmes.296 Since then the African Union has adopted a number of decisions related to climate change, such as the Algiers Declaration on Climate Change adopted in the 12th session of the Assembly in 2009, approving a common position of the African states for the negotiation process for the new global climate change regime post
293 Mahadevan, B. 2015. Republic of South Africa. An integrated MRV system in South Africa. International Partnership on Mitigation and MRV.
294 Global Carbon Atlas. Available at http://www.globalcarbonatlas.org/en/CO2-emissions [visited 09/03/2017].
(To put this in perspective South Africa’s CO2 emissions from fossil fuels are 462 Mt CO2 for a population of 54490000, which is substantially more that the continents biggest oil producers: Egypt 219 Mt CO2 with a population of 91508000, Algeria 150 Mt CO2 with a population of 39667000 and Nigeria with 104 Mt CO2 with a population of 182202000.)
295 Constitution of South Africa. Note 25 above. Section 24.
296African Union. Declaration on Climate Change and Development in Africa. Addis Ababa, Ethiopia, 30 January 2007. Doc.Assembly/AU/Decl.4 (VIII).
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2012. The Decision on the Accession of the African Union to UNFCCC and Kyoto Protocol was adopted in the 13th ordinary session, held in July 2009, in Sirte, Libya.297 This session also established the Committee of African Heads of State and Government on Climate Change (CAHOSCC), which is to lead the international climate change negotiations for Africa, and requested the Commission of African Union to develop a comprehensive African Strategy on Climate Change. The confirmation by CAHOSCC in the Malabo Declaration of 2014 that ‘adaptation is a priority in all actions on climate change in Africa’ stressed the importance of including adaptation components in the response to climate change in the Intended Nationally Determined Contributions of the African states.298 The Malabo Decision also endorsed the High Level Work Programme on Climate Change Action in Africa. This programme requested the African Union and other relevant institutions to develop a CAHOSCC Women and Gender Programme on Climate Change to engage women and address gender issues in climate change related actions, as well as to prepare an African Climate Resilient Agricultural Development Programme.299 These programmes are work in progress.
The Decision on Africa’s Engagement in the Global Climate Negotiations adopted in the 25th ordinary session, held in June 2015, in Johannesburg, South Africa, included the aim to keep global average temperature increases well below 1.5 ○C, to minimise the burden for adapting to climate change.300 These decisions specify the involvement of the African Union in the international climate change regime and aim to strengthen the effective participation of African countries under the UNFCCC. Moreover, they establish a common position, which is to prioritise adaptation, increase resilience and adaptive capacity of member states. However, none of these high level decisions refer to human rights in the context of climate change.
The ACHPR adopted a resolution on Climate Change and Human Rights and the Need to Study Its Impacts in Africa at the 46thordinary session on 25 November 2009 in Banjul, Gambia. This resolution highlights the importance of understanding the effects of climate
297 African Union. Decision on the African Common Position on Climate Change. Addis Ababa. 1-3 February, 2009. Doc. Assembly/AU/8(XII) Add.6.
298 African Union. Decision on the High Level Work Programme on Climate Change Action in Africa (WPCCAA) and Preparations for the Global Climate Change Events in 2014. Malabo.26-27 June. 2014 Doc.
Assembly/AU/11(XXIII) (Malabo Decision).
299 Ibid. Para. 12.
300 African Union. Note 388 above. Para. 5.
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change on human rights from the perspective of the African continent.301 This resolution was recalled in 2016 with the Resolution on Climate Change and Human Rights in Africa, since such a study had not taken place. This resolution encourages the member states to cooperate in order to achieve a strong and comprehensive climate action that will ensure human rights and urges member states to implement measures for the protection of vulnerable groups.302 It requests relevant working groups to undertake and present a study on the impacts of climate change on human rights in Africa within two years.303 This study is yet to be realised.
The African Ministerial Conference on the Environment has developed comprehensive Draft African Strategy on Climate Change. 304 The strategy seeks to enhance the adaptive capacities and resilience of the member states of the African Union, with the aim to minimise their vulnerability and pursuing a low carbon growth path according to the principles of the green economy, sustainable development, poverty reduction and attaining the Millennium Development Goals.305 The strategy aims to provide direction to member states and relevant stakeholders in addressing the challenges and opportunities related to climate change during the time period of 2015-2035.306 It also formulates the common position on climate change for Africa, which includes both adaptation and mitigation measures. Adaptation is the overriding priority and its focus must be shifted from the assessment of vulnerabilities to the implementation of adaptation programmes.307 The common position mentions NAMAs and National Adaptation Plans as tools to mitigate and adapt to climate change. The strategy identifies water, health and agriculture as key adaptation priorities for Africa.308 Similarly, with regard to mitigation, environmentally sound technologies for low carbon sustainable development (i.e. low emitting technologies) are mentioned.309
301 ACHPR. Resolution on Climate Change and Human Rights and the Need to Study its Impact in Africa.
Banjul. 11 to 25 November 2009. ACHPR/Res.153 (XLVI 153).
302 ACHPR. Resolution on Climate Change and Human Rights in Africa. Banjul. 6 - 20 April 2016.
ACHPR/Res. 342(LVIII) 2016. Para. i-ii.
303 Ibid. Para. iii.
304 The African Ministerial Conference on the Environment (AMCEN) was established in December 1985, following a conference of African ministers of environment held in Cairo, Egypt. Its mandate is to provide advocacy for environmental protection in Africa, to ensure that basic human needs are met adequately and in a sustainable manner, to ensure that social and economic development is realised at all levels, and to ensure that agricultural activities and practices meet the food security needs of the region. AMCEN is a special ministerial conference under the African Union.
305 AMCEN. Draft African Strategy on Climate Change. May 2014. AMCEN-15-REF-11. p. 16.
306 Ibid. p. 16.
307 Ibid. p. 21.
308 Ibid. p. 24.
309 Ibid.
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The Draft African Strategy on Climate Change goes further in defining concepts that require action by listing 48 goals with specific actions. The first 38 goals and the related actions approach different topics around climate change, such as disaster risk reduction, water resources, health, and agriculture and food security. The last 10 goals describe means of implementation. See Annex II on African Union’s Strategic Goals and Actions on Climate Change. The strategy sets clear goals and actions. However, the strategy fails in defining a budget and roles and responsibilities are only defined in high level.310
The strategy does not refer directly to human rights or the human rights implications of climate change, but it raises the issue of vulnerability of Africa to climate change.311 Furthermore, it clearly articulates that climate change imposes a threat on human health and therefore building climate resilience of member states is very important.312 The strategy envisages that vulnerability will be reduced through the strengthening of the adaptive capacities, including climate proofing313 of the continent, development and shifting from short term disaster relief interventions to longer term disaster management.314 The African Union has established a specialised agency called the African Risk Capacity, which is an extreme weather insurance mechanism designed to help the African Union member states to resist and to recover from the effects of drought.315 The strategy highlights the importance of the African Risk Capacity, which utilises risk management and risk transfer tools to address vulnerability and losses of lives and livelihoods, subsequent to climate-related natural disasters.316 Therefore, the African Risk Capacity may be well positioned to be part of a mechanism to address loss and damage and related compensation in Africa.
Even though the strategy falls short in terms of recognising the implications of climate change on human rights, and human rights are not mentioned as a basis to shape climate change policy, the strategy does recognise that climate change has significant developmental implications. The strategy further acknowledges that climate change affects food, water and health, which are underlying conditions required for the realisation of the right to highest
310 Ibid. pp. 36, 58 and 61.
311 Ibid. p. 13.
312 Ibid. p. 21.
313 Ibid. p. 28. (Climate proofing means development of climate smart systems that integrate disaster risk reduction, environment management, climate change and sustainable development.)
314 Ibid. p. 28.
315 Ibid. p. 20.
316 Ibid. p. 28.
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attainable standard of health, the right to adequate standard of living and the right to life. The strategy stresses that ‘…governments have a dejure and defacto obligation to improve the policy environment and proactively institutionalize climate change governance in their development processes’.317
As mentioned above the Draft African Strategy on Climate Change is informed by the principles of the green economy, sustainable development, poverty reduction and attaining the Millennium Development Goals. Therefore, even though human rights are not highlighted in the strategy, these principles generally drive towards the fulfilment of the fundamental rights such as the right to generally satisfactory environment, the right to adequate standard of living and the right to the enjoyment of the highest attainable standard of physical and mental health. However, these principles are not strong enough to guarantee that no rights would be violated. When adopted by the Assembly of the African Union the Draft African Strategy on Climate Change will offer a comprehensive strategy to its member states guiding them on how to adapt to climate change and increase resilience. It proposes the idea of exploring an insurance mechanism to help build resilience and provide for compensation, when necessary. The results of the study requested by the ACHPR on climate change and human rights are awaited, as they will ideally be used to guide policy development.
One of the goals defined in the Draft African Strategy on Climate Change is to integrate climate change into development planning.318 The African Union has adopted a Common African Position (CAP) on the Post 2015 Development Agenda published in March 2014 and an Agenda 2063 -The Africa We Want (Agenda 2063), adopted in January 2015. The Agenda 2063is a framework strategy for the socioeconomic change of Africa over the next 50 years and it is based on the implementation of past and existing initiatives of the African Union aimed at growth and sustainable development. The agenda builds on seven aspirations:
1) A prosperous Africa, based on inclusive growth and sustainable development;
2) An integrated and politically united continent founded on Pan Africanism and the vision of Africa’s Renaissance;
3) Africa of good governance, democracy, respect for human rights and the rule of law;
4) A peaceful and secure continent;
317 Ibid p. 27.
318 AMCEN. Note 305 above. Goal 2.
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5) Africa with a strong cultural identity and common heritage and values;
6) Africa whose development is people driven, with a focus on women, youth and children; and,
7) Africa as a strong, united, resilient and influential global player.319
Both of these documents recognise the challenges posed by climate change to development and they call for reducing vulnerability and strengthening resilience to climate change.320 The Agenda 2063 envisions that ‘climate resilient low carbon production systems’ substantially reduce the ‘vulnerability to climate risk and related natural disasters’.321 Both documents also refer to human rights and the need to reinforce rule of law and strengthen capacities to protect human rights.322 However, no connection is made between climate change and human rights.
It can be concluded that the African Union is directing its member states towards greener and more sustainable economies. It is building its adaptive capacity and improving its resilience to climate change, with a specific focus on the most vulnerable groups. However, it has not considered the importance of human rights in its climate change policy development. As discussed above in Chapter 3, the African Charter provides for the right to generally satisfactory environment in its Article 24, which when read together with Article 21 requires adequate compensation, if the environment is spoiled. As Beyerlin notes, this right generates substantive guarantees, which people can claim against their country, if consistent and precise arguments are used.323 This right to environment should form the basis of climate action in Africa. Furthermore, the minimum core rights as defined by ACHPR could be used as a basis for defining necessary minimum level of climate action. Human right safeguards should also be used to assessing the impacts of mitigation actions on human rights.
319 African Union. Agenda 2063 -The Africa We Want.p.2 April 2015.
320 African Union. Common African Position (CAP) on the post 2015 Development Agenda. March 2014. pp.
103-105. African Union. Note 319 above. pp.15-16.
321 Ibid. p. 9.
322 Ibid. p. 12-13 African Union. Note 215 above. pp. 22-23.
323 Beyerlin. Note 33 above. p. 392.
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4.2.1 The Basis of Environmental Protection
The environmental legal framework of South Africa has been designed around the environmental right provided in the Bill of Rights of the Constitution of the Republic of South Africa.324 The Constitution also provides for number of socioeconomic rights, such as the right to adequate housing and the right to sufficient water. Furthermore, the Constitution provides for procedural rights, which further strengthen environmental protection in the country.325 Section 24 of the Constitution states, that everyone has the right:
(a) to an environment that is not harmful to their health or well-being; and
(b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that
i. prevent pollution and ecological degradation;
ii. promote conservation; and
iii. secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.326
Therefore, the Constitution provides for a substantive right to environment, with the main objective of protecting the health and well-being of people for the benefit of present and future generations. Furthermore, it requires protection of the environment, prevention of pollution and ecological degradation, promotion of conservation as well as ecologically sustainable development.327 As Kotzé notes ‘…the environmental right will and does influence government actions, legislation, policies and in fact, all other measures which can be employed to realize the objectives of the right’.328
The National Environmental Management Act provides legal framework for environmental management in South Africa. It requires the assessment of environmental, socioeconomic and cultural heritage impacts of certain activities listed in the Environmental Impact Assessment
324 Kotzé, L. (2010). Phiri, the plight of the poor and the perils of climate change: time to rethink environmental and socio-economic rights in South Africa? Journal of Human Rights and the Environment. (1) 2. p. 143.
325 Ibid. p. 144.
326 Constitution of the Republic of South Africa. Note 257 above. Section 24.
327 Kotzé. Note 324 above. p. 145.
328 Ibid.
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Regulations.329 Depending on the result of such assessments, the activities which are listed or specified by the Minister of Environmental Affairs must obtain an environmental authorisation before they may commence.330 Furthermore, this assessment process mandates the inclusion of public participation processes and conflict resolutions in all phases of the assessment process.331 Currently neither the National Environmental Management Act nor the Environmental Impact Assessment Regulations makes specific reference to climate change.
However, the existing legal framework already provides some clear obligation to act on mitigation and adaptation to climate change through the right to a healthy environment.332
4.2.2 Climate Change Policy
South Africa voluntarily committed at COP 15 in Copenhagen in 2009 to reduce GHG emissions by 34 percent below business-as-usual by 2020 and 42 percent by 2025.333 In accordance with Article 4.7 of the UNFCCC, the extent to which this ambition can be realised depends on the level to which developed countries meet their commitments to provide financial, capacity-building, technology development and technology transfer support to developing countries. This commitment was acknowledged in COP 16, in Cancun, Mexico, and reaffirmed in the Intended Nationally Determined Contributions submitted to the UNFCCC prior to COP 21.334
South Africa has attended climate change mainly through policies and strategies as opposed to legislation. To fulfil its commitments South Africa has developed an ambitious National Climate Change Response Policy as contained in the National Climate Change Response White Paper (White Paper) - approved by the South African Cabinet and adopted in 2011.
The National Climate Change Response Policy provides a strategic approach to both mitigation and adaptation. It presents the vision for an effective climate change response and
329 National Environmental Management Act: Environmental Impact Assessment Regulations. 18 June 2010.
Government Gazette No. 33306 . Regulation 543.
330 The Republic of South Africa. National Environmental Management Act. 27 November 1998. Government Gazette No. 19519. Act107. Section 24.
331 Ibid.
332 Department of Environmental Affairs. South Africa’s Draft National Adaptation Strategy. 16 September 2016. p. 25-26.
333 Department of Environmental Affairs. South Africa’s Nationally Appropriate Mitigation Action submission under the Copenhagen Accord. 29 January 2010.
334 Department of Environmental Affairs. South Africa’s Intended Nationally Determined Contribution (INDC).
25 September 2015.
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the long-term transition to a climate-resilient, equitable and internationally competitive lower-carbon economy and society.335 This vision is based on the commitment of the government related to sustainable development and a better life for all.336
The White Paper also outlines a strategic response to climate change within the context of broader national development goals, which include economic growth, international economic competitiveness, sustainable development, job creation, improving public and environmental health, and poverty alleviation.337 The National Climate Change Response Policy has two objectives:
‘Effectively manage inevitable climate change impacts through interventions that build and sustain South Africa’s social, economic and environmental resilience and emergency response capacity.
Make a fair contribution to the global effort to stabilise GHG concentrations in the atmosphere at a level that avoids dangerous anthropogenic interference with the climate system within a time frame that enables economic, social and environmental development to proceed in a sustainable manner.’338
The response policy is informed by principles set out in the Constitution, the Bill of Rights, the National Environmental Management Act, the Millennium Declaration and the UNFCCC.339 The response policy recognises that climate change will significantly affect
‘human health, agriculture, other water-intensive economic sectors such as the mining and electricity-generation sectors as well as the environment in general’340 Furthermore, it stresses that climate change policies and measures ‘should address the needs of the poor and vulnerable and ensure human dignity, whilst endeavouring to attain environmental, social and economic sustainability’.341 Therefore, it recognises that climate change impacts some of the underlying conditions for effective enjoyment of human rights, and it places specific importance on climate action aimed at assisting poor and vulnerable groups.
335 Department of Environmental Affairs. National Climate Change Response White Paper. 11 October 2011.
Government Gazette No. 34695, Notice No. 757.p. 10.
336 Ibid. p.10.
337 Ibid. p. 11-15.
338 Ibid. p. 6.
339 Ibid. p. 5.
340 Ibid. p. 9.
341 Ibid. p. 12.
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The White Paper is guided by the Bill of Rights. However, it does not directly refer to the implications of climate change on human rights. The White Paper sets clear goals, resented in
The White Paper is guided by the Bill of Rights. However, it does not directly refer to the implications of climate change on human rights. The White Paper sets clear goals, resented in